The Traditional Safeguards
One of the legacies of the colonial period in Africa was the tradition of authoritarian rule backed up by wide-ranging emergency and security laws and a non-recognition of individual freedoms. Many independent African nations have followed this pattern with leaders, who bitterly criticised the abuse of human rights by the colonial power, being guilty of much the same conduct. Indeed Zimba argues that such criticism was no more than propaganda to discredit colonialism as being incompatible with human rights and democracy in order to win international sympathy for their cause. 1 The examples given earlier in the book tend to reinforce this analysis. Of course, the use of emergency powers is not necessarily improper or an unjustifiable abrogation of some individual freedoms if they are implemented within an acceptable constitutional framework. No one would seriously wish to deprive a State of the necessary legal weapons with which to tackle a genuine emergency situation. However, it is the basic assumption of this book that individual freedoms need constant protection as they are the cornerstone of every society. Indeed some freedoms are so fundamental that they are never liable to abrogation nor derogation for this would otherwise undermine the rule of law. Thus whilst it is not appropriate to place rigid controls on government action in times of emergency it is absolutely necessary to retain genuine safeguards against unwarranted abuses of individual freedoms. This means that a balance is required between the interests of the State and the rights of individual. The African experience shows that to date, the scales have been generally heavily weighted in favour of the State.
The next two chapters are concerned with examining techniques of safeguarding individual freedoms during a state of emergency. In this chapter the operation of the legislative, judicial and constitutional safeguards are discussed. The following chapter considers other potential safeguards. The discussion is of special relevance in that it seeks to devise a model for other African States to emulate and is particularly timely given the new and healthy respect for individual freedoms being expressed throughout Africa. 2
The emergence of the one-party state in many African nations and the general ineffectiveness of 'opposition' parties elsewhere has undermined much of the traditional role of the legislature as a check on the power of the executive. It is rightly said that during a period of crisis, a legislature can do little more than identify difficulties, allocate resources and give officials a wide discretion, 4 a process described as 'departicipation'. 5 A typical example is that of Malawi where membership of the legislature is dependent upon